Chapter XIX: Section 1: I can assure you with truth, that we meet you on this (2)

Again, on the 12th of July, Colonel Hull, by order from General Knox, the Secretary of War, writes to General Haldimand, the letter No. 27; and General Haldimand gives the answer of the 13th, No. 28, wherein he says, "Though I am now informed, by his Majesty's ministers, of the ratification, &c., I remain, &c., _not having received any orders_ to evacuate the posts which are without the limits," &c. And this is eighteen months after the signature of the general pacification! Now, is it not fair to conclude, if the order was not arrived on the 13th of August, 1783, if it was not arrived on the 10th of May, 1784, nor yet on the 13th of July, in the same year, that, in truth, the order had never been given? and if it had never been given, may we not conclude that it never had been intended to be given? From what moment is it we are to date this infraction? From that, at which, with convenient speed, the order to evacuate the upper posts might have been given. No legitimate reason can be assigned, why that order might not have been given as early, and at the same time, as the order to evacuate New York; and _all delay, after this, was in contravention of the treaty_.

Sec. 28. Was this delay merely innocent and unimportant to us, setting aside all considerations but of interest and safety? 1. It cut us off from the fur-trade, which before the war had been always of great importance as a branch of commerce, and as a source of remittance for the payment of our debts to Great Britain; for the injury of withholding our posts, they added the obstruction of all passage along the lakes and their communications. 2. It secluded us from connection with the northwestern Indians, from all opportunity of keeping up with them friendly and neighborly intercourse, brought on us consequently, from their known dispositions, constant and expensive war, in which numbers of men, women, and children, have been, and still are, daily falling victims to the scalping knife, and to which there will be no period, but in our possession of the posts which command their country.

It may safely be said, then, that the treaty was violated in England, before it was known in America, and in America, as soon as it was known, and that too, in points so essential, as that, without them, it would never have been concluded.

Sec. 29. And what was the effect of these infractions on the American mind? On the breach of any article of a treaty by the one party, the other has its election to declare it dissolved in all its articles, or to compensate itself by withholding execution of equivalent articles; or to waive notice of the breach altogether.

Congress being informed that the British commanding officer was carrying away the negroes from New York, in avowed violation of the treaty, and against the repeated remonstrances of General Washington, they take up the subject on the 26th of May, 1783; they declare that it is contrary to the treaty; direct that the proper papers be sent to their ministers plenipotentiary in Europe to remonstrate, and demand reparation, and that, in the meantime, General Washington continue his remonstrances to the British commanding officer, and insist on the discontinuance of the measure. See document No. 29.

Sec. 30. The State of Virginia, materially affected by this infraction, because the laborers thus carried away were chiefly from thence, while heavy debts were now to be paid to the very nation which was depriving them of the means, took up the subject in December, 1783, that is to say, seven months after that particular infraction, and four months after the first refusal to deliver up the posts, and instead of arresting the debts absolutely, in reprisal for their negroes carried away, they passed [D. 5.] the act to revive and continue the several acts for suspending the issuing executions on certain judgments until December, 1783, that is to say, they revived, till their next meeting, two acts passed during the war, which suspended all _voluntary and fraudulent_ assignments of debt, and as to _others_, allowed real and personal estate to be tendered in discharge of executions; the effect of which was to relieve the body of the debtor from prison, by authorizing him to deliver property in discharge of the debt. In June following, thirteen months after the violation last mentioned, and after a second refusal by the British commanding officer to deliver up the posts, they came to the resolution No. 30, reciting specially the infraction respecting their negroes, instructing their delegates in Congress to press for reparation; and resolving, that the courts shall be opened to British suits, as soon as _reparation shall be made_, or otherwise, _as soon as Congress shall judge it indispensably necessary_. And in 1787, they passed [C. 7.] the act to repeal so much of all and every act or acts of assembly, as prohibits the recovery of British debts; and, at the same time [E. 6.] the act to repeal part of an act for the protection and encouragement of the commerce of nations acknowledging the independence of the United States of America. The former was not to be in force till the evacuation of the posts, and reparation for the negroes carried away. The latter requires particular explanation. The small supplies of European goods, which reached us during the war, were frequently brought by captains of vessels and supercargoes, who, as soon as they had sold their goods, were to return to Europe with their vessels. To persons under such circumstances, it was necessary to give a summary remedy for the recovery of the proceeds of their sale. This had been done by the law for the protection and encouragement of the commerce of nations acknowledging the independence of the United States, which was meant but as a temporary thing, to continue while the same circumstances continued. On the return of peace, the supplies of foreign goods were made, as before the war, by merchants resident here. There was no longer reason to continue to them the summary remedy, which had been provided for the transient vender of goods. And, indeed, it would have been unequal to have given the resident merchant instantaneous judgment against a farmer or tradesman, while the farmer or tradesman, could pursue those who owed him money but in the ordinary way, and with the ordinary delay. The British creditor had no such unequal privilege while we were under British government, and had no title to it, in justice, or by the treaty, after the war. When the Legislature proceeded, then, to repeal the law, as to other nations, it would have been extraordinary to have continued it for Great Britain.

Sec. 31. South Carolina was the second State which moved in consequence of the British infractions, urged thereto by the desolated condition in which their armies had left that country, by the debts they owed, and the almost entire destruction of the means of paying them. They passed [D. 7. 20.] 1784, March 26th, an ordinance respecting the recovery of debts, suspending the recovery of all actions, as well American as British, for nine months, and then allowing them to recover payment at four equal and annual instalments only, requiring the debtor in the meantime, to give good security for his debt, or otherwise refusing him the benefit of the act, by--

[D. 21.] 1787, March 28, An act to regulate the recovery and payment of debts, and prohibiting the importation of negroes, they extended the instalments, a year further in a very few cases. I have not been able to procure the two following acts [D. 14.] 1785, October 12th, An act for regulating sales under executions, and for other purposes therein mentioned; and

[D. 22.] 1788, Nov. 4, An act to regulate the payment and recovery of debts, and to prohibit the importation of negroes for the time therein limited; and I know nothing of their effect, or their existence, but from your letter, which says, their effect was to deliver property in execution, in relief of the body of the debtor, and still further to postpone the instalments. If, during the existence of material infractions on the part of Great Britain, it were necessary to apologize for these modifications of the proceedings of the debtor, grounds might be found in the peculiar distresses of that State, and the liberality with which they had complied with the recommendatory articles, notwithstanding their sufferings might have inspired other dispositions, having pardoned everybody, received everybody, restored all confiscated lands not sold, and the prices of those sold.

Sec. 32. Rhode Island next acted on the British infractions, and imposed modifications in favor of such debtors as should be pursued by their creditors, permitting them to relieve their bodies from execution by the payment of paper money, or delivery of property. This was the effect of [D. 12.] 1786, March, An act to enable any debtor in jail, on execution at the suit of any creditor, to tender real, or certain specified articles of personal estate; and

[D. 16.] 1786, May, An act making paper money a legal tender. But observe, that this was not till _three years_ after the infractions by Great Britain, and repeated and constant refusals of compliance on their part.

Sec. 33. New Jersey did the same thing, by--

[D. 13.] 1786, March 23, An act to direct the modes of proceedings on writs on _fieri facias_, and for transferring lands and chattels for payment of debts; and

[D. 18.] 1786, May 26, An act for striking, and making current £100,000 in bills of credit, to be let out on loan; and

[D. 17.] 1786, June 1, An act for making bills, emitted by the act for raising a revenue of £31,259 5_s._ per annum, for twenty-five years, a legal tender; and

Sec. 34. Georgia, by [D. 19.] 1786, August 14, An act for emitting the sum of £50,000 in bills of credit, and for establishing a fund for the redemption, and for other purposes therein mentioned, made paper money also a legal tender.

These are the only States which appear, by the acts cited in your letter, to have modified the recovery of debts. But I believe that North Carolina also emitted a sum of paper money and made it a tender in discharge of executions; though, not having seen the act, I cannot affirm it with certainty. I have not mentioned, because I do not view the act of Maryland [D. 15.] 1786, Nov. c. 29, for the settlement of public accounts, &c., as a modification of the recovery of debts. It obliged the British subject, before he could recover what was due to him within the State, to give bond for the payment of what he owed therein. It is reasonable that every one, who asks justice, should do justice; and it is usual to consider the property of a foreigner, in any country, as a fund appropriated to the payment of what he owes in that country, exclusively. It is a care which most nations take of their own citizens, not to let the property, which is to answer their demands, be withdrawn from its jurisdiction, and send them to seek it in foreign countries, and before foreign tribunals.

Sec. 35. With respect to the obstacles thus opposed to the British creditor, besides their general justification, as being produced by the previous infractions on the part of Great Britain, each of them admits of a special apology. They are, 1st. Delay of judgment; 2d. Liberating the body from execution, on the delivery of property; 3d. Admitting executions to be discharged in paper money. As to the 1st, let it be considered, that, from the nature of the commerce carried on between these States and Great Britain, they were generally kept in debt; that a great part of the country, and most particularly Georgia, South Carolina, North Carolina, Virginia, New York, and Rhode Island, had been ravaged by an enemy, movable property carried off, houses burnt, lands abandoned, the proprietors forced off into exile and poverty. When the peace permitted them to return again to their lands, naked and desolate as they were, was instant payment practicable? The contrary was so palpable, that the British creditors themselves were sensible that, were they to rush to judgment immediately against their debtors, it would involve the debtor in total ruin, without relieving the creditor. It is a fact, for which we may appeal to the knowledge of one member at least of the British administration of 1783, that the chairman of the North American merchants, conferring on behalf of those merchants with the American ministers then in London, was so sensible that time was necessary as well to save the creditor as debtor, that he declared there would not be a moment's hesitation, on the part of the creditors, to allow payment by instalments annually for seven years, and that this arrangement was not made, was neither his fault nor ours.

To the necessities for some delay in the payment of debts may be added the British commercial regulations, lessening our means of payment, by prohibiting us from carrying in our own bottoms our own produce to their dominions in our neighborhood, and excluding valuable branches of it from their home markets by prohibitory duties. The means of payment constitute one of the motives to purchase, at the moment of purchasing. If these means are taken away, by the creditor himself, he ought not in conscience to complain of a mere retardation of his debt, which is the effect of his own act, and the least injurious to those it is capable of producing. The instalment acts before enumerated have been much less general, and for a shorter term than what the chairman of the American merchants thought reasonable. Most of them required the debtor to give security, in the meantime, to his creditor, and provided complete indemnification of the delay by the payment of interest, which was enjoined in every case.

Sec. 36. The second species of obstacle was the admitting the debtor to relieve his body from imprisonment, by the delivery of lands or goods to his creditor. And is this idea original, and peculiar to us? or whence have we taken it? From England, from Europe, from natural right and reason. For it may be safely affirmed, that neither natural right nor reason subjects the body of a man to restraint for debt. It is one of the abuses introduced by commerce and credit, and which even the most commercial nations have been obliged to relax, in certain cases. The Roman law, the principles of which are the nearest to natural reason of those of any municipal code hitherto known, allowed imprisonment of the body in criminal cases only, or those wherein the party had expressly submitted himself to it. The French laws allow it only in criminal or commercial cases. The laws of England, in certain descriptions of cases (as bankruptcy) release the body. Many of the United States do the same in all cases, on a cession of property by the debtor. The _levari facias_, an execution affording only the _profits of lands_, is the only one allowed in England, in certain cases. The _elegit_, another execution of that and this country, attaches first on a man's chattels, which are not to be sold, but to be _delivered to the plaintiff_, on a _reasonable appraisement_, in part of satisfaction for his debt, and if not sufficient, one half only of his lands are then to be delivered to the plaintiff, till the _profits_ shall have satisfied him. The tender laws of these States were generally more favorable than the execution by _elegit_, because they not only gave, as that does, the whole property in chattels, but also _the whole property_ in the lands, and not merely the _profits_ of them. It is, therefore, an execution framed on the model of the English _elegit_, or rather an amendment of that writ, taking away, indeed, the election of the party against the _body_ of his debtor, but giving him, in exchange for it, much more complete remedy against his _lands_. Let it be observed, too, that this proceeding was allowed against citizens, as well as foreigners; and it may be questioned, whether the treaty is not satisfied, while the same measure is dealt out to British subjects, as to foreigners of all other nations, and to natives themselves. For it would seem, that all a friend can expect, is to be treated as a native citizen.

Sec. 37. The third obstacle was the allowing paper money to be paid for goods sold under execution. The complaint on this head is only against Georgia, South Carolina, Jersey, and Rhode Island; and this obstruction, like the two others, sprung out of the peculiar nature of the war; for those will form very false conclusions, who reason, as to this war, from the circumstances which have attended other wars, and other nations. When any nation of Europe is attacked by another, it has neighbors, with whom its accustomary commerce goes on, without interruption; and its commerce with more distant nations is carried on by sea, in foreign bottoms, at least under protection of the laws of neutrality. The produce of its soil can be exchanged for money, as usual, and the stock of that medium of circulation is not at all diminished by war; so that property sells as readily and as well, for real money, at the close, as at the commencement of the war. But how different was our case: on the north and south, were our enemies; on the west, deserts inhabited by savages in league with them; on the east, an ocean of one thousand leagues, beyond which, indeed, were nations, who might have purchased the produce of our soil, and have given us real money in exchange, and thus kept up our stock of money, but who were deterred from coming to us by threats of war on the part of our enemies, if they should presume to consider us as a people, entitled to partake the benefit of that law of war, which allows commerce with neutral nations. What were the consequences? The stock of hard money, which we possessed in an ample degree, at the beginning of the war, soon flowed into Europe for supplies of arms, ammunition, and other necessaries, which we were not in the habit of manufacturing for ourselves. The produce of our soil, attempted to be carried in our own bottoms to Europe, fell, two-thirds of it, into the hands of our enemies, who were masters of the sea; the other third illy sufficed to procure the necessary implements of war; so that no returns of money supplied the place of that which had gone off. We were reduced, then, to the resource of a paper medium, and that completed the exile of the hard money; so that, in the latter stages of the war, we were, for years together, without seeing a single coin of the precious metals in circulation. It was closed with a stipulation that we should pay a large mass of debt, in such coin. If the whole soil of the United States had been offered for sale for ready coin, it would not have raised as much as would have satisfied this stipulation. The thing, then, was impossible, and reason and authority declare, "Si l'empêchement est reel, il faut donner du tems; car nul n'est tenu a l'impossible."[13] Vattel, l. 4, s. 51. We should, with confidence, have referred the case to the arbiter proposed by another jurist, who lays it down that a party, "Non ultra obligari, quam in quantum facere potest; et an possit, permittendum alterius principis, quo boni viri arbitrio."[14] Bynk. Q. J. P. l. 2, c. 10. That four of the States should resort, under such circumstances, to very small emissions of paper money, is not wonderful; that all did not, proves their firmness under sufferance, and that they were disposed to bear whatever could be borne, rather than contravene, even by way of equivalent, stipulations which had been authoritatively entered into for them. And even in the four States, which emitted paper money, it was in such small sums, and so secured, as to suffer only a short-lived, and not great depreciation of value; nor did they continue its quality as a tender, after the first paroxysms of distress were over. Here, too, it is to be observed, that natives were to receive this species of payment, equally with British subjects.

So that, when it is considered, that the other party had broken the treaty, from the beginning, and that, too, in points which lessened our ability to pay their debts, it was a proof of the moderation of our nation, to make no other use of the opportunity of retaliation presented to them, than to indulge the debtors with that time for discharging their debts, which their distresses called for, and the interests and the reason of their creditors approved.

Sec. 38. It is to be observed, that, during all this time, Congress, who alone possessed the power of peace and war, of making treaties, and, consequently, of declaring their infractions, had abstained from every public declaration, and had confined itself to the resolution of May 26th, 1783, and to repeated efforts, through their minister plenipotentiary at the court of London, to lead that court into a compliance on their part, and reparation of the breach they had committed. But the other party now laid hold of those very proceedings of our States, which their previous infractions had produced, as a ground for further refusal; and inverting the natural order of cause and effect, alleged that these proceedings of ours were the causes of the infractions, which they had committed months and years before. Thus the British minister for foreign affairs, in his answer of February 28th, 1786, to Mr. Adams' memorial, says, "The engagements entered into by treaty ought to be mutual, and equally binding on the respective contracting parties. It would, therefore, be the height of folly, as well as injustice, to suppose one party alone obliged to a strict observance of the public faith, while the other might remain free to deviate from its own engagements, as often as convenience might render such deviation necessary, though at the expense of its own national credit and importance; I flatter myself, however, Sir, that justice will speedily be done to British creditors; and I can assure you, Sir, that whenever America shall manifest a real intention to fulfil her part of the treaty, Great Britain will not hesitate to prove her sincerity to co-operate in whatever points depend upon her, for carrying every article of it into real and complete effect." Facts will furnish the best commentary on this letter. Let us pursue them.

The Secretary for Foreign Affairs of the United States, by order of Congress, immediately wrote circular letters to the Governors of the several States, dated May 3, 1786, No. 31, to obtain information how far they had complied with the proclamation of January 14th, 1784, and the recommendation accompanying it; and April 13, 1787, Congress, desirous of removing every pretext which might continue to cloak the inexecution of the treaty, wrote a circular letter to the several States, in which, in order to produce more surely the effect desired, they demonstrate that Congress alone possess the right of interpreting, restraining, impeding, or counteracting the operation and execution of treaties, which, on being constitutionally made, become, by the confederation, a part of the law of the land, and, as such, independent of the will and power of the Legislatures; that, in this point of view, the State acts, establishing provisions relative to the same objects, and incompatible with it, must be improper; resolving that all such acts now existing ought to be forthwith repealed, as well to prevent their continuing to be regarded as violations of the treaty, as to avoid the disagreeable necessity of discussing their validity; recommending, in order to obviate all future disputes and questions, that every State, as well those which had passed no such acts as those which had, should pass an act, repealing, in general terms, all acts and parts of acts repugnant to the treaty; and encouraging them to do this, by informing them that they had the strongest assurances that an exact compliance with the treaty on our part, would be followed by a punctual performance of it on the part of Great Britain.

Sec. 39. In consequence of these letters, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Delaware, Maryland, Virginia, and North Carolina, passed the acts Nos. 32, 33, 34, 35, 36, 37, 38, 39, 40. New Jersey and Pennsylvania declared that no law existed with them repugnant to the treaty--see documents Nos. 41, 42, 43. Georgia had no law existing against the treaty. South Carolina, indeed, had a law existing, which subjected all persons, foreign or native, No. 44, to certain modifications of recovery and payment. But the liberality of her conduct on the other points is a proof she would have conformed in this also, had it appeared that the fullest conformity would have moved Great Britain to compliance, and had an express repeal been really necessary.

Sec. 40. For indeed all this was supererogation. It resulted from the instrument of confederation among the States, that treaties made by Congress, according to the confederation, were superior to the laws of the States. The circular letter of Congress had declared and demonstrated it, and the several States, by their acts and explanations before mentioned, had shown it to be their own sense, as we may safely affirm it to have been the general sense of those, at least, who were of the profession of the law. Besides the proof of this, drawn from the act of confederation itself, the declaration of Congress, and the acts of the States before mentioned, the same principle will be found acknowledged in several of the documents hereto annexed for other purposes. Thus, in Rhode Island, Governor Collins, in his letter, No. 20, says, "The treaty, in all _its absolute parts_, has been fully complied with, and to those parts that are merely _recommendatory_ and _depend upon the legislative discretion_, the most candid attention hath been paid." Plainly implying that the _absolute parts_ did not _depend upon the legislative discretion_. Mr. Channing, the attorney for the United States in that State, No. 19, speaking of an act passed before the treaty, says, "This act was considered by our courts as _annulled by the treaty of peace_, and subsequent to the ratification thereof no proceedings have been had thereon." The Governor of Connecticut, in his letter, No 18, says, "The sixth article of the treaty was immediately observed on receiving the same with the proclamation of Congress; the courts of justice adopted it _as a principle of law_. No further prosecutions were instituted against any person who came within that article, and all such prosecutions as were then pending were discontinued." Thus, prosecutions going on, under the law of the State, were discontinued, by the treaty operating as a repeal of the law. In Pennsylvania, Mr. Lewis, attorney for the United States, says, in his letter, No. 60, "The judges have, uniformly and without hesitation, declared in favor of the treaty, on the ground of its being the supreme law of the land. On this ground, they have not only discharged attainted traitors from arrest, but have frequently declared that they were entitled by the treaty to protection." The case of the Commonwealth _vs._ Gordon, January, 1788, Dallas' Reports, 233, is a proof of this. In Maryland, in the case of Mildred _vs._ Dorsey, cited in your letter [E. 4.] a law of the State, made during the war, had compelled those who owed debts to British subjects to pay them into the treasury of that State. This had been done by Dorsey, before the date of the treaty; yet the judges of the _State_ general court decided that the treaty not only repealed the law for the future, but for the past also, and decreed that the defendant should pay the money over again to the British creditor. In Virginia, Mr. Monroe, one of the Senators of that State in Congress, and a lawyer of eminence, tells us, No. 52, that both court and counsel there avowed the opinion, that the treaty would control any law of the State opposed to it. And the Legislature itself, in an act of October, 1787, c. 36, concerning moneys carried into the public loan office, in payment of British debts, use these expressions: "And whereas it belongs not to the Legislature to decide particular questions, of which the judiciary have cognizance, and it is, therefore, unfit for them to determine whether the payments so made into the loan office be good or void between the creditor and debtor." In New York, Mr. Harrison, attorney for the United States in that district, assures us, No. 45, that the act of 1782, of that State, relative to the debts due to persons within the enemy's line, was, immediately after the treaty, restrained _by the superior courts of the State_ from operating on British creditors, and that he did not know a single instance to the contrary--a full proof that they considered the treaty as a law of the land, paramount to the law of their State.

Sec. 41. The very case of Rutgers, _vs._ Waddington, [E. 8.] which is a subject of complaint in your letter, is a proof that the courts consider the treaty as paramount to the laws of the States. Some parts of your information, as to that case, have been inexact. The State of New York had, during the war, passed an act [C. 16.] declaring that, in any action by the proprietor of a house or tenement against the occupant, for rent or damage, no military order should be a justification; and, May 4, 1784, after the refusal of the British to deliver up the posts in the State of New York, that Legislature revived the same act. [C. 19.] Waddington, a British subject, had occupied a brew-house in New York, belonging to Rutgers, an American, while the British were in possession of New York. During a part of the time he had only permission from the quartermaster general; for another part he had an order of the commanding officer to authorize his possession. After the evacuation of the city, Rutgers, under the authority of this law of the State, brought an action against Waddington for rent and damages, in the Mayor's court of New York. Waddington pleaded the treaty, and the court declared the treaty a justification, in opposition to the law of the State, for that portion of the time authorized by the commanding officer, his authority being competent, and gave judgment for that part in favor of the defendant; but, for the time he held the house under permission of the quartermaster general only, they gave judgment against the defendant, considering the permission of that officer incompetent, according to the regulations of the existing powers. From this part of the judgment the defendant appealed. The first part, however, was an unequivocal decision of the superior authority of the treaty over the law. The latter part could only have been founded in an opinion of the sense of the treaty in that part of the 6th article which declares, "There shall be no future prosecutions against any persons for the part he may have taken in the war, and that no person should, on that account, suffer any future loss or damage in their property," &c. They must have understood this as only protecting actions which were conformable with the laws and authority existing at the time and place. The tenure of the defendant under the quartermaster general was not so conformable. That under the commanding officer was. Some may think that murders, and other crimes and offences, characterized as such by the authority of the time and place where committed, were meant to be protected by this paragraph of the treaty; and, perhaps, for peace sake, this construction may be the most convenient. The Mayor's court, however, seems to have revolted at it. The defendant appealed, and the question would have been authoritatively decided by the superior court, had not an amicable compromise taken place between the parties. See Mr. Hamilton's statement of this case, No. 46.

Sec. 42. The same kind of doubt brought on the arrest of John Smith Hatfield in New Jersey, whose case [E. 9.] is another ground of complaint in your letter. A refugee, sent out by the British as a spy, was taken within the American lines, regularly tried by a court martial, found guilty, and executed. There was one Ball, an inhabitant of the American part of Jersey, who, contrary to the laws of his country, was in the habit of secretly supplying the British camp in Staten Island with provisions. The first time Ball went over, after the execution of the spy, of which it does not appear he had any knowledge, and certainly no agency in his prosecution, John Smith Hatfield, a refugee also from Jersey, and some others of the same description, seized him, against the express orders of the British commanding officer, brought him out of the British lines, and Hatfield hung him with his own hands. The British officer sent a message to the Americans, disavowing this act, declaring that the British had nothing to do with it, and that those who had perpetrated the crime ought alone to suffer for it. The right to punish the guilty individual seems to have been yielded by the one party, and accepted by the other, in exchange for that of retaliation on an innocent person; an exchange which humanity would wish to see habitual. The criminal came afterwards into the very neighborhood, a member of which he had murdered. Peace, indeed, had now been made; but the magistrate, thinking probably, that it was for the honest soldier and citizen only, and not for the murderer, and supposing, with the mayor's court of New York, that the paragraph of the treaty against future persecutions meant to cover authorized acts only, and not murders and other atrocities, disavowed by the existing authority, arrested Hatfield. At the court which met for his trial, the witnesses failed to attend. The court released the criminal from confinement, on his giving the security required by law for his appearance at another court. He fled; and you say that, "as his friends doubted the disposition of the court to determine according to the terms of the treaty, they thought it more prudent to suffer the forfeiture of the recognizances, than to put his life again into jeopardy." But your information in this, Sir, has not been exact. The recognizances are not forfeited. His friends, confident in the opinion of their counsel, and the integrity of the judges, have determined to plead the treaty, and not even give themselves the trouble of asking a release from the Legislature; and the case is now depending. See the letter of Mr. Boudinot, member of Congress for Jersey, No. 47.

Sec. 43. In Georgia, Judge Walton, in a charge to a grand jury, says, "The State of Rhode Island having acceded to the Federal Constitution, the Union and Government have become complete. To comprehend the extent of the General Government, and to discern the relation between that and those of the States, will be equally our interest and duty. The Constitution, laws, and _treaties_ of the Union are _paramount_." And in the same State, in their last federal circuit court, we learn from the public papers, that, in a case wherein the plaintiffs were Brailsford and others, British subjects, whose debts had been sequestered (not confiscated) by an act of the State during the war, the judges declared the treaty of peace a repeal of the act of the State, and gave judgment for the plaintiffs.

Sec. 44. The integrity of those opinions and proceedings of the several courts should have shielded them from the insinuations hazarded against them. In pages 9 and 10, it is said, "That during the war, the Legislatures passed laws to confiscate the estates of the loyalists, to enable debtors to pay into the State treasuries paper money, then exceedingly depreciated, in discharge of their debts." And page 24, "The dispensations of law _by the State courts_ have been as unpropitious to the subjects of the crown, as the legislative acts of the different assemblies." Let us compare, if you please, Sir, these unpropitious opinions of our State courts with those of foreign lawyers' writing on the same subject. [15]"Quod dixi de actionibus recto publicandis ita demum obtinet; si quod subditi nostri hostibus nostris debent, princeps a subditis suis revera exegerit. Si exegerit, recte solutum est, si non exegerit, pace facta, reviviscit jus pristinum creditoris; secundum, hæc inter gentes fere convenit, ut nominibus bello publicatis, pace deinde factâ, exacta censeantur periisse, et maneant extincta; non autem exacta reviviscant et restiuantur veris creditoribus." Bynk. Q. J. P. l. 1, c. 7. But what said the judges of the State court of Maryland in the case of Mildred and Dorsey? That a debt forced from an American debtor into the treasury of his sovereign, is not extinct, but shall be paid over again to his British creditor. Which is most propitious, the unbiassed foreign jurist, or the American judge, charged with dispensing justice with favor and partiality? But from this, you say, there is an appeal. Is that the fault of the judge, or the fault of anybody? Is there a country on earth, or ought there to be one, allowing no appeal from the first errors of their courts? and if allowed from errors, how will those from just judgments be prevented? In England, as in other countries, an appeal is admitted to the party thinking himself injured; and here, had the judgment been against the British creditor, and an appeal denied, there would have been better cause of complaint than for not having denied it to his adversary. If an _illegal_ judgment be ultimately rendered on the appeal, then will arise the right to question its propriety.

Sec. 45. Again it is said, page 34, "In one State the _supreme federal court_ has thought proper to suspend for many months the final judgment on an action of debt, brought by a British creditor." If by _the supreme federal court_ be meant _the supreme court of the United States_, I have had their records examined, in order to know what may be the case here alluded to; and I am authorized to say, there neither does, nor ever did exist any cause before that court, between a British subject and a citizen of the United States. See the certificate of the clerk of the court, No. 48. If by _the supreme federal court_ be meant _one of the circuit courts of the United States_, then which circuit, in which State, and what case is meant? In the course of inquiries I have been obliged to make, to find whether there exists any case, in any district of any circuit court of the United States, which might have given rise to this complaint, I have learnt, that an action was brought to issue, and argued in the circuit court of the United States, in Virginia, at their last term, between Jones, a British subject, plaintiff, and Walker, an American, defendant; wherein the question was the same as in the case of Mildred and Dorsey, to wit; Whether a payment into the treasury, during the war, under a law of the State, discharged the debtor? One of the judges retiring from court, in the midst of the argument, on the accident of the death of an only son, and the case being _primæ impressionis_ in that court, it was adjourned, for consideration, till the ensuing term. Had the two remaining judges felt no motive but of predilection to one of the parties; had they considered only to which party their wishes were propitious or unpropitious; they possibly might have decided that question on the spot. But, learned enough in their science to see difficulties which escape others, and having characters and consciences to satisfy, they followed the example so habitually and so laudably set by the courts of your country, and of every country, where law, and not favor, is the rule of decision, of taking time to consider. Time and consideration are favorable to the right cause, precipitation to the wrong one.

Sec. 46. You say again, p. 29, "The few attempts to recover British debts, in the courts of Virginia, have _universally_ failed, and these are the courts wherein, from the smallness of the sum, a considerable number of debts can only be recovered." Again, p. 34, "In the same State, county courts (which alone can take cognizance of debts of limited amount) have _uniformly rejected_ all suits instituted for the recovery of sums due to the subjects of the crown of Great Britain." In the first place, the county courts, till of late, have had exclusive jurisdiction only of sums below 10_l._, and it is known, that a very inconsiderable proportion of the British debt consists in demands below that sum. A late law, we are told, requires, that actions below 30_l._ shall be commenced in those courts; but allows, at the same time, an appeal to correct any errors into which they may fall. In the second place, the evidence of gentlemen who are in the way of knowing the fact, No. 52, 53, is, that though there have been accidental checks in some of the subordinate courts, arising from the chicanery of the debtors, and sometimes, perhaps, a moment of error in the court itself, yet these particular instances have been immediately rectified, either in the same or the superior court, while the great mass of suits for the recovery of sums due to the subjects of the crown of Great Britain, have been uniformly sustained to judgment and execution.

Sec. 47. A much broader assertion is hazarded, page 29. "In some of the Southern States, there does not exist a single instance of the recovery of British debt in their courts, though many years have expired since the establishment of peace between the two countries." The particular States are not specified. I have therefore thought it my duty to extend my inquiries to all the States which could be designated under the description of Southern, to wit: Maryland, and those to the south of that.

As to Maryland, the joint certificate of the senators and delegates of the State in Congress, the letter of Mr. Tilghman, a gentleman of the law in the same State, and that of Mr. Gwinn, clerk of their general court, prove that British suits have been maintained in the superior and inferior courts throughout the State without any obstruction; that British claimants have, in every instance, enjoyed every facility in the tribunals of justice equally with their own citizens; and have recovered in due course of law, and remitted large debts, as well under contracts previous, as subsequent to the war.

In Virginia, the letters of Mr. Monroe and Mr. Giles, members of Congress from that State, and lawyers of eminence in it, prove that the courts of law in that State have been open and freely resorted to by the British creditors, who have recovered and levied their moneys without obstruction; for we have no right to consider as obstructions the dilatory pleas of here and there a debtor, distressed perhaps for time, or even an accidental error of opinion in a subordinate court, when such pleas have been overruled, and such errors corrected in a due course of proceeding marked out by the laws in such cases. The general fact suffices to show that the assertion under examination cannot be applied to this State.

In North Carolina, Mr. Johnston, one of the senators of that State, tells us he has heard indeed but of few suits brought by British creditors in that State; but that he never heard that any one had failed of a recovery because he was a British subject; and he names a particular case, of Elmesly _v._ Lee's executors, "of the recovery of a British debt in the superior court at Edenton." See Mr. Johnston's letter, No. 54.

In South Carolina, we learn, from No. 55, of particular judgments rendered, and prosecutions carried on, without obstacle, by British creditors, and that the courts are open to them there as elsewhere. As to the modifications of the execution heretofore made by the State law having been the same for foreigner and citizen, a court would decide whether the treaty is satisfied by this equal measure; and if the British creditor is privileged by that against even the same modifications to which citizens and foreigners of all other nations were equally subjected, then the law imposing them was a mere nullity.

In Georgia, the letter of the senators and representatives in Congress, No. 56, assures us that, though they do not know of any recovery of a British debt, in their State, neither do they know of a denial to recover since the ratification of the treaty, the creditors having mostly preferred amicable settlement; and that the federal court is as open and unobstructed to British creditors there, as in any other of the United States; and this is further proved by the late recovery of Brailsford and others, before cited.

Sec. 48. You say more particularly of that State, page 25, "It is to be lamented, that, in a more distant State, (Georgia) it was a received principle, inculcated by an opinion of the highest judicial authority there, that as no Legislative act of the State ever existed, confirming the treaty of peace with Great Britain, war still continued between the two countries--_a principle which may perhaps still continue in that State_." No judge, no case, no time, is named. Imputations on the judiciary of a country are too serious to be neglected. I have thought it my duty, therefore, to spare no endeavors to find on what fact this censure was meant to be affixed. I have found that Judge Walton of Georgia, in the summer of 1783, the definitive treaty not yet signed in Europe, much less known and ratified here, set aside a writ in the case of Thompson, (a British subject) _v._ Thompson, assigning for reasons, 1st. "That there was no law authorizing a subject of England to sue a citizen of that State; 2d. That the war had not been _definitively_ concluded; or 3d. If concluded, the treaty not _known to, or ratified by_, the Legislature; nor 4th. Was it in any manner ascertained how those debts were to be liquidated." With respect to the last reason, it was generally expected that some more specific arrangements, as to the manner of liquidating and times of paying British debts would have been settled in the definitive treaty. No. 58 shows, that such arrangements were under contemplation. And the judge seems to have been of opinion that it was necessary the treaty should be _definitively_ concluded, before it could become a law of the land, so as to change the legal character of an _alien enemy_, who cannot maintain an action, into that of an _alien friend_, who may. Without entering into the question, whether, between the provisional and definitive treaties, a subject of either party could maintain an action in the courts of the other (a question of no consequence, considering how short the interval was, and this, probably the only action essayed), we must admit that, if the judge was right in his opinion, that a _definitive_ conclusion was necessary, he was right in his consequence that it should be _made known_ to the Legislature of the State, or, in other words, to the State; and that, till that _notification_, it was not a law authorizing a subject of England to sue a citizen of that State. The subsequent doctrine of the same judge, Walton, with respect to the treaties, _when duly completed_, that they are paramount to the laws of the several States, as has been seen in this charge to a grand jury, before spoken of, (Sec. 43,) will relieve your doubts whether the "principle still continues in that State, of the _continuance of war between the two countries_."

Sec. 49. The latter part of the quotation before made, merits notice also, to wit, where, after saying not a single instance exists of the recovery of a British debt, it is added, "though many years have expired since the establishment of peace between the two countries." It is evident from the preceding testimony, that many suits have been brought, and with effect; yet it has often been matter of surprise that more were not brought, and earlier, since it is most certain that the courts would have sustained their actions and given them judgments. This abstinence on the part of the creditors has excited a suspicion that they wished rather to recur to the treasury of their own country; and to have color for this, they would have it believed that there were obstructions here to bringing their suits. Their testimony is in fact the sole, to which your court till now, has given access. Had the opportunity now presented been given us sooner, they should sooner have known that the courts of the United States, whenever the creditors would choose that recourse, and would press, if necessary, to the highest tribunals, would be found as open to their suits, and as impartial to their subjects, as theirs to ours.

Sec. 50. There is an expression in your letter, page 7, that "British creditors have not been countenanced or supported, either by the respective Legislatures, or by the State courts, in their endeavors to recover the full value of debts contracted antecedently to the treaty of peace." And again, in p. 8, "In many of the States, the subjects of the crown in endeavoring to obtain the restitution of their forfeited estates and property, have been treated with indignity." From which an inference might be drawn, which I am sure you did not intend, to wit: that the creditors have been deterred from resorting to the courts by popular tumults, and not protected by the laws of the country. I recollect to have heard of one or two attempts, by popular collections, to deter the prosecution of British claims. One of these is mentioned in No. 49. But these were immediately on the close of the war, while its passions had not yet had time to subside, and while the ashes of our houses were still smoking. Since that, say for many years past, nothing like popular interposition, on this subject, has been heard of in any part of our land. There is no country, which is not sometimes subject to irregular interpositions of the People. There is no country able, at all times, to punish them. There is no country which has less of this to reproach itself with, than the United States, nor any, where the laws have more regular course, or are more habitually and cheerfully acquiesced in. Confident that your own observation and information will have satisfied you of this truth, I rely that the inference was not intended, which seems to result from these expressions.

Sec. 51. Some notice is to be taken, as to the great deficiencies in collection urged on behalf of the British merchants. The course of our commerce with Great Britain was ever for the merchant there to give his correspondent here a year's credit; so that we were regularly indebted from a year to a year and a half's amount of our exports. It is the opinion of judicious merchants, that it never exceeded the latter term, and that it did not exceed the former at the commencement of the war. Let the holders then of this debt be classed into, 1st. Those who were insolvent at that time. 2d. Those solvent then, who became insolvent during the operations of the war--a numerous class. 3d. Those solvent at the close of the war, but insolvent now. 4th. Those solvent at the close of the war, who have since paid or settled satisfactorily with their creditors--a numerous class also. 5th. Those solvent then and now, who have neither paid, nor made satisfactory arrangements with their creditors. This last class, the only one now in question, is little numerous, and the amount of their debts but a moderate proportion of the aggregate which was due at the commencement of the war; insomuch, that it is the opinion, that we do not owe to Great Britain, at this moment, of separate debts, old and new, more than a year, or a year and a quarter's exports, the ordinary amount of the debt resulting from the common course of dealings.